Category Archives: Water Quality

Appeals Court Urged to Keep Freeze on Army Corps’ NWP 12 for Pipelines

From Allegheny-Blue Ridge Alliance’s ABRA Update #277, May 22, 2020:

The Ninth Circuit Court of Appeals has been urged to uphold a Federal District Court in Montana’s ruling prohibiting the U.S. Army Corps of Engineers’ Nationwide Permit 12 (NWP12) program from issuing new permits for oil and natural gas pipelines. The District Court’s April 15 ruling came in a case challenging the NWP12 permit for the Keystone project and was extended to affect permits for other new oil and natural gas pipelines. The ruling impacts the Atlantic Coast and Mountain Valley Pipelines, neither of which currently have valid NWP12 permits.

In a May 20, 2020 brief filed with the Court, the Northern Plains Resource Council, a Montana-based conservation group, argued that Army Corps had failed to evaluate the cumulative impact on endangered species of all projects under the NWP12 and that the agency should have completed a programmatic review under the Endangered Species Act before reauthorizing the program for a five-year term beginning in 2017. The case is before the Ninth Circuit on appeal by the Army Corps and industry groups that are asking the Appeals Court to overturn the District Court’s freeze of the NWP12 program until the case is decided the issues. For a copy of the brief, click here.

Yet Another Blow to ACP and MVP

Writing in Blue Virginia on May 12, 2020, Jonathan Sokolow describes how the nationwide injunction by a judge in Montana brings construction on the Atlantic Coast and Mountain Valley Pipelines to a halt, since they no longer have a valid permit to cross the thousands of waterways along their routes.

“On April 15, the judge in Northern Plains Resource Council v. U.S. Army Corps of Engineers, issued a nationwide order vacating a key federal permit, known as Nationwide Permit 12 (NWP 12 for short). Chief District Court Judge Brian Morris ruled that the Corps failed to comply with key provisions of the Endangered Species Act when it issued NWP 12 in 2017.”

Although the case was about the Keystone XL pipeline, the vacated permit affects all pipeline construction. Both the MVP and the ACP decided to avoid applying for individual water crossing permits by asking for and receiving permission to use the now vacated blanket NWP 12.

Keystone XL and other and other industry powerhouses (including Dominion) asked Judge Morris “to reverse himself, or at least modify his April ruling to apply only to the Keystone XL pipeline. They also asked the judge to stay his own order pending appeal.” On May 11, Judge Morris said no to both requests.

When companies complained that the ruling left them unable to cross water bodies, the judge pointed out that they could still pursue individual permits: “Developers remain able to pursue individual permits for their new oil and gas pipeline construction….Intervenors possess no inherent right to maximize revenues by using a cheaper, quicker permitting process, particularly when their preferred process does not comply with the [Endangered Species Act].”

Sokolow says, “Keystone XL will no doubt appeal this ruling. And ACP and MVP will continue to spin repeated court losses as ‘temporary’ setbacks. But for now, the nationwide injunction represents another huge impediment to construction of two massive pipelines that together, would more than double Virginia’s production of green house gases from stationary sources.”

And Sokolow concludes with a statement we all heartily endorse: “It is long past time for the companies behind these projects to fold their tents and go home.”

DEQ: Still Resisting Water Protections, Public Participation


In a Virginia Mercury guest column on May 11, 2020, Wild Virginia’s David Sligh discusses the ongoing refusal by Virginia’s Department of Environmental Quality to recognize violations of water quality “in thousands of photographs, scientific study results, and other evidence given to DEQ” that “agency officials can’t or, more plausibly, won’t see.”

He says, “In state reviews for the Mountain Valley and Atlantic Coast pipelines, many of us warned that dirt washing off the land and released during digging and blasting through streams would produce harmful sediment pollution. MVP’s degradation of our waters has proven us right. DEQ failed to use available tools or develop necessary ones to prevent that damage in this case and these failures have allowed pollution problems in many other cases as well, though usually with much less public exposure.”

DEQ’s response? They repeatedly say they don’t know how to assess whether a violation is present, it is too difficult to adopt numeric criteria for pollutants, tasks are too difficult to do in a timely fashion, and resources are lacking.

In March 2020, DEQ announced a new stakeholder advisory group to discuss numeric criteria for turbidity in streams. Sounds good, right? Not as good as it sounds.

“First, DEQ has decided to exclude willing and able members of the public from meaningful roles and has stacked the SAG with representatives of regulated industries and others with financial interests and histories of opposing stringent regulations.”

“Second, DEQ started this process after decades of failing to provide this most basic protection and, only then, under orders from the State Water Control Board. This lack of initiative by DEQ leaders leaves Virginia trailing behind a majority of states and our waters unprotected against severe damages that should have been stopped years ago.”

For the new stakeholder advisory group, DEQ “hand-picked organizations and individuals it wanted in the room” and “because this committee is not part of an official regulatory process, state laws about public involvement do not apply.”

Court Denies Request for A Stay of Keystone XL Decision Affecting NWP 12

From Allegheny-Blue Ridge Alliance’s ABRA Update 274, April 30, 2020:

Chief Judge Brian Morris for the U.S. District Court for the District of Montana said on April 28 that he would not issue an administrative stay to his April 15 order blocking the Army Corps’ Nationwide Permit 12 (NWP12) program, pending consultation with other federal agencies under the Endangered Species Act. The judge’s earlier decision effectively halted the authority of the U.S. Corps of Engineers from issuing any permits for any project subject to NWP12. This includes the Atlantic Coast Pipeline, which at this date does not have a valid NWP12 permit in any of the four Corps districts in which the project’s route runs. Last week, the Corps suspended issuing any NWP12 permits. Judge Morris in his April 28 ruling establish a briefing schedule for the April 15 decision to be appealed.

See Court Ruling on Army Corps Permit for Keystone XL Will Impact ACP for the story on the April 15 order.

ACP Effects on Virginia Wetlands


From the Digital Commons at Longwood University comes this interesting 15 minute video presentation on The Atlantic Coast Pipeline: Effects on Wetlands in Virginia, a Longwood University Student Showcase by Travis Wood and Coleman Behne, April 22, 2020.

Their summary statement:

Wetland mitigation banking is a familiar topic in Virginia, especially with the introduction of the Atlantic Coast Pipeline. The proposed pipeline, which extends from West Virginia to North Carolina, impacts nearly 315 acres of wetlands in Virginia alone. Under current Virginia law, wetlands are to be undisturbed by any destruction-related actions. The pipeline, however, has raised many questions as to why the State is making certain exceptions for a natural gas pipeline. There is a gap between society’s demand for natural gas and the negative environmental impacts the pipeline brings. Environmental justice is also a concern, when groups of people resist placing compressor stations in their communities (e.g. Buckingham County). The wetlands that will see the largest impact is the Great Dismal Swamp National Wildlife Refuge, with 22 proposed wetland crossings that will impact 75.9 acres of wetlands. This paper examines how the pipeline is able to disturb wetlands that are deemed ‘untouchable’. The proposed pipeline also comes within 100 feet of wildlife boundaries. Additionally, 13 forested wetlands will be crossed resulting in 21.7 acres of permanent conversion to scrub-shrub or herbaceous wetlands. In preparing plans and scoping areas the natural gas pipeline can pass through, many wetlands and other nationally protected areas are being disturbed and we examine whether the potential benefits outweigh the negatives.

Court Ruling on Army Corps Permit for Keystone XL Will Impact ACP


According to an AP story on April 15, 2020, “A U.S. judge canceled a key permit Wednesday for the Keystone XL oil pipeline that’s expected to stretch from Canada to Nebraska, another setback for the disputed project that got underway less than two weeks ago following years of delays.”  The article notes that, “The cancellation could have broader implications because it appears to invalidate dredging work for any project authorized under the 2017 permit, said attorney Jared Margolis with the Center for Biological Diversity, another plaintiff in the case. It’s unclear what projects would be included.”

The press release from the Center for Biological Diversity is here.

Bloomberg’s article, Keystone XL Ruling Has ‘Sweeping’ Impacts for Other Projects, says “ClearView Energy Partners analyst Christine Tezak said the ruling could delay the Atlantic Coast and Mountain Valley natural gas pipelines on the East Coast because developers planned to rely on the NWP 12 program, though they don’t have any authorizations in place.”

From Allegheny-Blue Ridge Alliance ABRA Update #272, April 16, 2020:  A federal district judge in Montana on April 15 ruled that the U.S. Army Corps of Engineers violated the law when it approved National Permit 12 (NWP12) to permit the Keystone XL Pipeline to cross streams and rivers under the Corps’ jurisdiction. The ruling invalidates Nationwide Permit 12, prohibiting the Corps from using this fast-tracked approval process for any pipelines nationwide.

The Corps begin issuing NWP12 in 1977 for categories of activities that it deems to be similar in nature and “will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effect on the environment.” The Atlantic Coast Pipeline (ACP) is currently without an authorized NWP12. Until the district court decision is reversed on appeal, a new NWP12 for any pipeline project, including the ACP, cannot be issued.

The case had been brought by the Northern Plains Resource Council in 2019. The judge ruled that the “Corps failed to consider relevant expert analysis and failed to articulate a rational connection between the facts it found and the choice it made” regarding endangered species that were in the path of the project. Click here for a copy of the plaintiff’s statement commenting upon the decision (which also includes a link to the court decision).